Smt. Jayashree W/O Rajeev ... vs Rajeev S/O Rangrao Deshpande
2021 Latest Caselaw 2902 Kant

                             1



           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

        DATED THIS THE 22ND DAY OF JULY 2021

                         PRESENT
          THE HON'BLE MR.JUSTICE S.G.PANDIT
                            AND
         THE HON'BLE MR.JUSTICE M.G.S.KAMAL

                 M.F.A. NO.31665/2012
                           C/W
                M.F.A. NO.31666/2012(FC)

IN M.F.A.NO.31665/2012
BETWEEN:
Smt. Jayashree W/o Rajeev
Age: 33 years, Occ: Private work
C/o: Dhananjaya Kulkarni
H.No.11-1839, behind S.B.College
Vidya Nagar, Gulbarga
Now R/o H.No. 11-1828
Vidya Nagar, Gulbarga-585 103
                                              ... Appellant

(By Sri Arunkumar Bakkappa Kinny, Advocate)
AND:
Rajeev S/o Rangrao Deshpande
Age: 43 years, Occ: Govt. Servant
R/o: Vidya Nagar, Gulbarga now
R/o: Dist. Instruction & teacher
Training Education Center
DIET YERMRAS
Tq. & Dist. Raichur-584101
                                           ... Respondent
(Sri Ameet Kumar Deshpande, Advocate)
                               2



        This Miscellaneous First Appeal is filed under Section
19 (1) of the Family Courts Act, praying to allow this appeal
by setting aside the impugned order dated: 23.07.2012 in
M.C.No.177/2010 on the file of the court of Dist. Judge
Family Court at Gulbarga and dismiss the petition for the
relief of divorce as prayed in M.C.No.177/2010.

IN M.F.A.NO.31666/2012

BETWEEN:

Smt. Jayashree W/o Rajeev
Age: 33 years, Occ: Private work
C/o: Dhananjaya Kulkarni
H.No.11-1839, behind S.B.College
Vidya Nagar, Gulbarga
Now R/o H.No. 11-1828
Vidya Nagar, Gulbarga-585 103
                                                 ... Appellant

(By Sri Arunkumar Bakkappa Kinny, Advocate)

AND:

Rajeev S/o Rangrao Deshpande
Age: 43 years, Occ: Govt. Servant
R/o: Vidya Nagar, Gulbarga now
R/o: Dist. Instruction & teacher
Training Education Center
DIET YERMRAS
Tq. & Dist. Raichur-584101
                                               ... Respondent
(Sri Ameet Kumar Deshpande, Advocate)

       This Miscellaneous First Appeal is filed under Section
19 (1) of Family Courts Act, praying to allow this appeal by
setting aside the impugned order dated: 23.07.2012 in
M.C.No.141/2010 on the file of the court of Dist. Judge
Family Court at Gulbarga and dismiss the petition for the
relief of Restitution of Conjugal Rights as prayed in
M.C.No.141/2010.
                               3



     These appeals coming on for hearing this day,
S.G.Pandit, J., delivered the following:

                        JUDGMENT

Both the above appeals are filed under Section

19(1) of the Family Courts Act, assailing the judgment

dated 23.07.2012 in M.C.No.177/2010 by which,

petition filed under Section 13(1)(i-a) of Hindu Marriage

Act, 1955 (hereinafter referred to as "the Act" for short)

is allowed, marriage of the appellant and respondent is

dissolved; and judgment dated 23.07.2012 in

M.C.No.141/2010 by which, the petition filed under

Section 9 of the Act for restitution of conjugal rights is

rejected.

2. Both the appeals are by wife challenging the grant

of decree of divorce and rejection of her petition for

restitution of conjugal rights.

3. The respondent-husband filed a petition under

Section 13(1)(i-a) of the Act praying for dissolution of

marriage with the appellant-wife. It is stated that the

marriage of appellant and respondent had taken place

on 24.04.2004 according to the Hindu rites and

customs. They lived happily for some time and a girl

child namely Kum.Pavani was born. The husband

states that when the wife came back to the matrimonial

home along with the child, she forced mother of the

husband to live separately. It is alleged by the husband

that the wife used to quarrel for small reasons. Further

the husband alleges that the appellant-wife used to call

for unnatural sex and she misbehaved like a devil in the

sex. It is also alleged that the appellant-wife forced the

husband to commit suicide, so that she could get the

job. The husband got issued the legal notice dated

13.01.2005 seeking dissolution of marriage and the

appellant-wife had filed a criminal complaint with the

Mahila Police. It is stated that the Police authorities

advised them to stay together, thereafter they stayed

together for some time. Tthe respondent-husband was

transferred to Raichur, but the appellant-wife failed to

live with him. The appellant-wife, during September

2010 left the matrimonial house and the respondent-

husband, with all household utensils including gas

cylinders, without informing him.

4. On appearance, the appellant-wife filed objection

admitting the marriage and birth of girl child

Kum.Pavani. Further, she denied the allegation of

misbehaving with the respondent-husband and also

denied the allegation of unnatural sex. The appellant-

wife also denied the allegation of forcing the respondent-

husband to commit suicide to get his employment. She

also denies leaving of the matrimonial home in

September 2010.

5. The appellant-wife filed a petition under Section 9

of the Act, praying for restitution of conjugal rights

alleging that since the date of marriage the attitude of

the husband towards the wife was indifferent and there

was no enthusiasm by the respondent-husband.

Further the wife states that neither respondent-

husband nor any other family members of the

respondent attended the cradle ceremony of their

daughter. After 4 to 5 months, the wife returned to her

matrimonial house and the respondent-husband very

reluctantly allowed her to reside. The wife alleges that

during her absence the husband had developed and

involved in homosexuality and the attitude of the

respondent-husband towards the wife was very

shocking and also that they had no physical contact.

Further the wife states that the respondent-husband

was taken to Bangalore for treatment with psychiatrist

where it was confirmed that he is a homosexual and has

a weak capacity of performing physical contact. It is

also alleged that the respondent-husband used to

assault the appellant-wife on the pretext of not bringing

sufficient dowry. Therefore, the respondent-husband

started hating the appellant-wife. The respondent-

husband was transferred to Raichur and he refused to

take wife and daughter along with him to Raichur. After

some time, the respondent-husband reluctantly took

the wife and daughter to Raichur and kept them in a

separate rented house. From then onwards, the

respondent-husband failed to discharge his marital

obligations and never turned up to wife. The

respondent-husband not only failed in marital

obligation, but withdrew himself from the company of

the wife without there being any reason.

6. The respondent-husband filed his objections to

the petition filed by the wife for restitution of conjugal

rights denying the allegations made in the petition.

Further the respondent-husband stated that he had met

the entire expenses of the wife for pursuing B.Ed.,

degree amounting to Rs.50,000/- and had also bought a

second hand TVS Scooty for her at Rs.15,000/-. The

respondent-husband in his objection stated that

indifferent attitude, indecent and vulgar behaviour of

the wife compelled his mother who is aged and sick to

leave the house and settle with her other children. It is

also alleged that 2 to 3 times the appellant-wife gave

false complaint and dragged the respondent-husband,

his mother and sister to the Police Station. Further the

respondent-husband states that the appellant-wife is

not a normal woman in every sense and she is abusive

and vulgar in her behaviour and she is a criminal

minded. It is stated that she threatened to poison the

respondent so as to get the job. The appellant-wife has

suicidal tendencies. Further the respondent-husband

has stated that the wife has insatiable urge for sex and

she, on several times tried to compel the respondent to

indulge in unnatural sex for which the respondent did

not agree. The appellant-wife has not performed her

duty as expected of a wife and on the contrary she is a

quarrelsome and abusive in nature. Standing on the

public road, in full view of the public she used to hurt

with vulgar abuses the respondent, his family members

and relatives. The appellant-wife is in the habit of

making wild and baseless allegations against the

respondent. The appellant-wife also accused him of

being impotent in front of the public, in the Police

Station and at the respondent's office at Gulbarga and

Raichur. The appellant-wife continued mental and

physical torture towards respondent. Thus he prayed

for dismissal of the petition.

7. The Family Court, on evaluation of the material on

record and on careful appreciation of evidence, allowed

the petition filed by the husband under section 13(1)(i-a)

of the Act and dissolved the marriage of the appellant

and respondent and dismissed the petition of the wife

filed under section 9 of the Act for restitution of

conjugal rights. Hence, the appellant wife is before this

Court challenging both the above judgments.

8. Heard learned counsel Sri Arunkumar Bakkappa

Kinny for appellant-wife and Sri Ameet Kumar

Deshpande for respondent-husband.

9. Learned counsel for the appellant-wife submits

that the impugned judgments of the Family Court are

contrary to law and material on record. He submits

that the Family Court committed grave error in allowing

the petition filed under Section 13(1)(i-a) of the Act on

the ground of cruelty and in dismissing the petition filed

under Section 9 of the Act for restitution of conjugal

rights. The learned counsel would submit that the

respondent-husband failed to prove the cruelty and he

further submits that unless the ground of cruelty is

proved with cogent evidence, the Court could not grant

divorce on the ground of cruelty. It is his submission

that the husband has also made serious allegations

against the appellant-wife. In the above stated

circumstances, the family court committed an error in

granting divorce on the ground of cruelty.

10. Learned counsel for the appellant-wife submits

that when the wife stated that she is ready and willing

to join the respondent-husband, the Family Court was

required to allow the petition filed under section 9 of the

Act. It is his submission that it is the husband who has

left the company of the appellant-wife. Learned counsel

would submit that when the relationship is admitted

and in the paramount interest of the child, the Family

Court ought to have provided an opportunity for the

appellant-wife to lead marital life with respondent-

husband.

11. On the contrary, the learned counsel for

respondent-husband supports and justifies the

judgments under appeals. It is his submission that the

allegations made by the wife are such that it is not

possible for the husband to continue matrimonial

relationship with the wife. The baseless allegations of

homosexuality against the husband amounts to cruelty

and such reckless allegations are made without any

basis. In such circumstances, the Family Court is

justified in granting the decree of divorce by rejecting

petition filed for restitution of conjugal rights. Further,

he also submits that the appellant-wife had filed false

criminal complaints against the respondent-husband,

mother-in-law and she had dragged them to Police

Station. Learned counsel for the respondent-husband

submits that the appellant-wife has failed to prove the

allegations made against the husband and onus is on

the person who makes the allegation to prove the same.

Thus he prays for dismissal of the appeals.

12. On hearing the learned counsels for the parties

and on perusal of the trial court records, the only point

that arises for consideration is as to whether the Family

Court is justified in dissolving the marriage of the

appellant and respondent on the ground of cruelty and

whether the Family Court is justified in dismissing the

petition of the wife for restitution of conjugal rights?.

13. Answer to the above point would be in the

affirmative for the following reasons.

The word "cruelty" is not defined. The cruelty may

be mental or physical, intentional or unintentional. It is

the conduct in relation to or in respect of matrimonial

duties and obligations. The cruelty alleged may largely

depend upon the type of life they are leading, their

economic and social conditions, their culture and

human values to which they attach importance.

Cruelty is to be decided on the facts and circumstances

and matrimonial relations between the spouses. The

Hon'ble Apex Court in the case of Dr.N.G.DASTANE v/s

Mrs.S.DASTANE reported in AIR 1975 SC 1534 has

made it clear that in a proceedings for divorce or judicial

separation, petitioner need not establish the allegation

of cruelty beyond reasonable doubt. The fact situation

shall be weighed with preponderance of probabilities.

14. The Hon'ble Apex Court was considering the

mental cruelty in relation to Section 13(1)(i-a) of the Act

and has explained what is mental cruelty broadly under

the above provision in the case of V.BHAGAT v/s

Mrs.D.BHAGAT reported in AIR 1994 SC 710 at

paragraph 17 as follows:

"Mental cruelty in S.13(1)ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at

such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made."

15. In the above case of BHAGAT, the husband had

alleged adultery against the wife and the wife had

alleged against the husband that he has lost his normal

mental health, that he is a mental patient requiring

expert psychological treatment and above all, to brand

him and all the members of his family including his

grand-father as lunatics. In the light of those

allegations, the Hon'ble Apex Court held that making

such allegations in the pleadings and putting such

questions to the husband while he is in the witness box

is bound to cause him intense, mental pain and

anguish besides affecting his career and professional

prospects and held that such assertions would

constitute mental cruelty.

16. In the above backdrop of the principles laid down

by the Hon'ble Apex Court, the facts of the present case

will have to be examined. A perusal of the entire

pleadings including evidence in both the proceedings for

divorce as well as restitution of conjugal rights disclose

that both the husband and wife have made serious and

reckless allegations against each other. The wife in

her petition for restitution of conjugal rights has alleged

against the husband that he has developed and involved

in homosexuality and he was taken to Bangalore for

counseling with a psychiatrist.

Relevant portion at paragraphs 4 and 5 of

the petition reads as follows:

"4. Since from the first day of the marriage the attitude of the respondent towards the petitioner was indifferent. There was no enthusiasm as a newly bride expects from her husband from the respondent. In the meantime, the petitioner became pregnant and in the fifth month of pregnancy the respondent sent the petitioner to her parental house for delivery. After 1½ years of marriage a daughter by name Pavani was born to the parties to the proceedings. At the cradle ceremony of the daughter neither the respondent nor the other family members of the respondent attended the function inspite of invitation several times. After 4-5 months of the delivery the petitioner returned to her matrimonial house and the respondent very reluctantly allowed her to reside.

5. After the petitioner returned to the house of the respondent to the shock of the petitioner, she came to know that during the period of her absence the respondent has

developed and involved in homosexuality and thus the total attitude of the respondent towards the petitioner was very shocking and the petitioner and the respondent after that had no physical contacts."

The husband in his objections to the

petition for restitution of conjugal rights has

also made reckless allegations against the

wife alleging that she is a criminal minded;

she is an abusive and vulgar in her

behaviour and has insatiable urge for sex.

Relevant portions at paragraphs 4, 5 and 22

reads as follows:

"4. The averments made in para 5 of the petition are baseless and derogatory in nature. Hence denied.

On the other hand, the petitioner is not a normal woman in every sense. She is abusive and vulgar in her behaviour. She is a criminal minded. Several times she has threatened to poison to death the respondent,

so that she can get his job and also the family pension. The petitioner has suicidal tendencies. Many times she has said that "she will commit suicide and see that all the members of the respondent's family are put behind the bars."

5. The petitioner has an insatiable urge for sex. She is a veritable sex fiend. Several times she tried to compel the respondent to indulge in unnatural sex for which the respondent did not agree as he dislike it.

22. The petitioner is in the habit of making wild and baseless allegation against the respondent. The petitioner has accused him of being impotent in front of the all public in the police station and the respondent offices at Gulbarga & Raichur, yet she has filed this false petition, in fact the petitioner's real intention is to seek heavy maintenance amount."

The wife in her examination-in-chief by

way of affidavit dated 13.10.2011 has

deposed as follows:

"¸Àzj À ¥Àª æ ÀiÁtÂPv À ð À ¼ÀÄ ¥Àw æ ªÁ¢AiÀÄ eÉÆvÉ ªÀÄzÀĪÉAiÀiÁzÀ ªÉÆzÀ®£ÉAiÀÄ ¢£À¢AzÀ ¥Àw æ ªÁ¢AiÀÄ DªÀ¨sÁªÀU¼ À ÀÄ GvÁì»PÀ£ÁVgÀzÃÉ «avÀª æ ÁV £Àqz É ÀÄPÉƼÀÄîwz Û ÀÝ£ÀÄ. ¥Àw æ ªÁ¢AiÀÄÄ ªÀÄÄAzÉ ¥Àª æ ÀiÁtÂPv À ð À ¼ÀÄ UÀ©ðtÂAiÀiÁzÀ ªÉÄÃ¯É ¨ÁtvÀ£ª À £ À ÀÄß ªÀiÁr¹PÉƼÀ® î Ä ¥Àw æ ªÁ¢AiÀÄÄ ¥Àª æ ÀiÁtÂPv À ð À ½UÉ vÀªg À ÀÄ ªÀÄ£ÉUÉ PÀ¼ÀÄ»¹gÀÄvÁÛ£.É DUÀ ¥ÁªÀ¤ JA§ MAzÀÄ ºÉtÄÚ ºÀÄnÖzÀ £ÀAvÀgÀ ¥Àw æ ªÁ¢UÉ vÀ£Àß ªÀÄUÀ¼À vÉÆnÖ® PÁAiÀÄðPÀª æ ÄÀ PÉÌ ¥Àª æ ÀiÁtÂPv À ð À ¼À vÀªÀgÀÄ ªÀÄ£ÉAiÀĪÀgÀÄ PÀgz É g À ÄÀ ¥Àw æ ªÁ¢AiÀiÁUÀ° CxÀªÁ CªÀgÀ PÀÄlÄA§zÀ ¸Àz¸ À ÀågÁUÀ° §A¢gÀĪÀÅ¢¯Áè. ¨ÁtvÀ£ÀªÁzÀ £ÀAvÀgÀ ¥Àª æ ÀiÁtÂPv À ð À ¼ÀÄ vÀ£Àß UÀAqÀ£À ªÀÄ£ÉUÉ ªÀÄvÉÃÛ ªÉʪÁ»PÀ fêÀ£À £Àq¸ É ® À Ä ºÉÆÃVgÀÄvÁÛ¼.É DUÀ ¥Àª æ ÀiÁtÂPv À ð À ¼ÀÄ UÀAqÀ£À ªÀÄ£ÉUÉ ºÉÆÃzÁUÀ D±ÀA Ñ iÀÄð ZÀQvÀ¼ÁVgÀÄvÁÛ¼.É PÁgÀt ¥Àw æ ªÁ¢AiÀÄÄ ¸À°AUÀ PÁªÀÄÄPÀ£ÁV PÉlÖ ZÀlªÀ£ÀÄß CAn¹PÉÆArgÀÄvÁÛ£.É EzÀ£ÀÄß CjwzÀÝjAzÀ ¥Àw æ ªÁ¢AiÀÄÄ ¥Àª æ ÀiÁtÂPv À ð À ¼À eÉÆvÉ AiÀiÁªÀÅzÉà zÉÊ»PÀ ¸ÀA§AzsÀ ElÄÖPÉÆArgÀĪÀÅ¢¯Áè. DzÀgÀÄ ¥Àª æ ÀiÁtÂPv À ð À ¼ÀÄ E°èAiÀĪÀgU É É ¥Àw æ AiÀĪÁ¢AiÀÄ eÉÆvÉ

UÀAqÀ£A É zÀÄ ¨sÁ«¹ CªÀgÀ eÉÆvÉ fêÀ£À ¸ÁV¸ÀÄvÁÛ §A¢gÀÄvÁÛ¼.É ¸Àzj À ¥Àw æ ªÁ¢AiÀÄÄ ¸À°AUÀ PÁªÀÄ ZÀlPÉÌ §°AiÀiÁVgÀĪÀÅzÀjAzÀ ¥Àw æ ªÁ¢AiÀÄ PÀÄlÄA§zÀ ¸Àz¸ À ÀågÀÄ ªÀÄvÀÄÛ ¥Àª æ ÀiÁtÂPv À ð À ¼À£ÀÄß ¨ÉAUÀ¼ÀÆj£À ªÉÊzÀågÀ°è vÉÆÃj¹zÁUÀ ¥Àw æ ªÁ¢AiÀÄÄ ¸À°AUÀ PÁªÀÄ ZÀlPÉÌ M¼ÀUÁVgÀĪÀÅzÀÄ UÀÄgÀÄw¹ ¥Àw æ ªÁ¢UÉ ¸Àzj À ZÀl¢AzÀ zÀÆgÀ«zÀÄÝ ¥Àª æ ÀiÁtÂPv À ð À ¼À eÉÆvÉ fêÀ£À £Àq¸ É ® À Ä ¸À®ºÉ ªÀiÁrgÀÄvÁÛg.É ¸Àzj À ¥Àw æ ªÁ¢AiÀÄÄ vÀ£Àß PÉlÖ ZÀl¢AzÀ ¥Àª æ ÀiÁtÂPv À ð À ¼À eÉÆvÉ zÉÊ»PÀ ¸ÀA§AzsÀ ªÀiÁqÀ®Ä ¸ÁzsÀåªÁUÀzÃÉ ¥Àª æ ÀiÁtÂPv À ð À ½UÉ vÀªg À ÀÄ ªÀÄ£ÉUÉ PÀ½¸ÀĪÀ GzÉÝñÀ¢AzÀ vÀªg À ÀÄ ªÀģɬÄAzÀ E£ÀÆß ºÉa£ Ñ À gÀÆ.2,00,000/- ªÀgz À QÀ ëuÉ vÀgÀĪÀAvÉ QgÀÄPÀļÀ ¤ÃqÀÄvÁÛ ªÀÄvÀÄÛ vÀ£Àß ªÀÄUÀ¼ÁzÀ ¥ÁªÀ¤AiÀÄ£ÀÄß ¸ÀjAiÀiÁV £ÉÆÃrPÉƼÀîzÃÉ ªÀÄ£ÉUÉ ¨ÉÃPÁUÀĪÀ CrUÉ ¸ÁªÀiÁ£ÀÄUÀ¼ÀÄ PÉÆqÀzÃÉ ¥Àª æ ÀiÁtÂPv À ð À ¼À£ÄÀ ß ªÀÄvÀÄÛ ªÀÄUÀ¼£ À ÀÄß G¥ÀªÁ¸À PÉq« À gÀÄvÁÛ£.É "

The husband in his examination-in-

chief by way of affidavit dated 24.02.2012 at

paragraphs 5, 7, and 13 has deposed as

follows:

"5. CfðzÁgÀ¼ÀÄ J¯Áè ªÀÄ»¼ÉAiÀÄgÀAvÉ ¸ÁªÀiÁ£ÀåªÁVgÀ°®è, MAzÀÄ jÃwAiÀÄ°è ¯ÉÊAVPÀ gÁPÀ¹ ë AiÀÄAvÉ ªÀwð¸ÀÄwÛÛzÀݼÀÄ, JzÀgÀÄzÁgÀ££ À ÀÄß ¸ÀÄvÁgÁªÀÄ EµÀÖ«®èªA É zÀÄ w½¢zÀÝgÀÄ, JzÀgÀÄzÁgÀ££ À ÀÄß

§®ªÀAvÀªÁV C£ÉʹVðPÀ (Unnatural Sexual) ¯ÉÊAVPÀvU É É MvÁÛAiÀÄ ¥Àr¸ÀÄwÛzÀݼÀÄ. JzÀgÀÄzÁgÀ¤UÉ »A¸É ¤ÃqÀĪÀÅzÀPÉÌ F jÃw ªÀwð¹ CwAiÀiÁzÀ ¯ÉÊAVPÀ ªÁAbɬÄAzÀ JzÀgÀÄzÁgÀ£À ªÉʪÁ»PÀ fêÀ£ª À £ À ÀÄß vÀÄA¨Á£É PÀµÀÖPg À ª À ÁVj¹zÁݼ.É

7. CfðzÁgÀ¼ÀÄ AiÀiÁªÀÅzÉà jÃwAiÀÄ ªÀÄ£É PÉ®¸ÀU¼ À £ À ÀÄß ªÀiÁqÀĪÀÅ¢®è ªÀÄvÀÄÛ §j ¸ÀtÚ ¥ÀÄlÖ «µÀAiÀÄUÀ¼£ À ÀÄß zÉÆqÀØzÁV ªÀiÁr ¢£Á®Ä ªÀÄ£ÉAiÀÄ°è MA¢¯Áè MAzÀÄ PÁgÀtPÉÌ dUÀ¼À ªÀiÁr ¨ÉÊAiÀÄÄvÁÛ¼.É PÉ®ªÉǪÉÄä gÀ¸A ÉÛ iÀÄ ªÉÄÃ¯É ¤AvÀÄ JzÀÄgÀÄzÁgÀ¤UÉ ªÀÄ£À§AzÀAvÉ ¨Á¬ÄUÉ §AzÀºÁUÉ ¨ÉÊAiÀÄÄvÁÛ¼É ªÀÄvÀÄÛ »AiÀiÁ½¸ÀÄvÁÛ¼,É MªÉÆäªÄÉ ä d£ÀgÀ ªÀÄÄAzÉ JzÀgÀÄzÁgÀ££ À ÀÄß £À¥ÀÄA¸ÀPÀ JAzÀÄ »AiÀiÁ½¸ÀÄvÁÛ¼,É CfðzÁgÀ½UÉ vÀÈ¦Û JA§ÄzÉ E®è, AiÀiÁªÁUÀ®Ä CvÀȦ۬ÄAzÀ EgÀÄvÁÛ¼.É

13. F CfðAiÀÄ°è CfðzÁgÀ¼ÄÀ

JzÀgÀÄzÁgÀ££ À ÀÄß ¸À°AUÀPÁ«Ä (Homo Sexual) JAzÀÄ ªÀiÁ£À¹PÀ ªÀÄvÀÄÛ zÉÊ»PÀªÁV »A¸É GAlĪÀiÁrzÁݼ,É DzÀÄzÀjAzÀ CfðzÁgÀ¼À F «avÀæ ¤zÁðPÀëuÉ ªÀvð À £É¬ÄAzÀ JzÀÄgÀÄzÁgÀ£ÀÄ gÉÆõÀºÉÆÃV wêÀæ ªÀiÁ£À¹PÀ DWÁvÀPÉÌ M¼ÀUÁVzÁÝgÉ ªÀÄvÀÄÛ fêÀ£ª À £ À Éß ¨ÉøÀgª À ÁUÀĪÀAvÉ ªÀiÁrzÁݼ.É "

In his cross-examination, the wife

through her advocate has suggested the

following:"

"£À£Àß «zÁåyðUÀ¼ÀÄ CzÀg® À Æè UÀAqÀÄ ºÀÄqÀÄUÀ «zÁåyðUÀ¼£ À ÀÄß £À£Àß ªÀÄ£ÉUÉ PÀgz É ÀÄPÉÆAqÀÄ §AzÀÄ £Á£ÀÄ CªÀgÉÆA¢UÉ ¯ÉÊAVPÀ QæAiÉÄAiÀÄ£ÀÄß ªÀiÁqÀÄwÛzÉÝ JAzÀÄ ºÉüÀĪÀÅzÀÄ ¸ÀjAiÀÄ®è ªÀÄvÀÄÛ CfðzÁgÀ¼ÄÀ ¸Àzj À ¥ÀPæ g À t À ªÀ£ÀÄß £ÉÆÃr D jÃw ªÀiÁqÀĪÀÅzÀÄ ¨ÉÃqÀªA É zÀÄ ºÉýzÁUÀ®Æ ¸ÀºÀ £Á£ÀÄ CªÀ¼À ªÀiÁvÀ£ÀÄß PÉýgÀĪÀÅ¢®è JAzÀÄ ºÉüÀĪÀÅzÀÄ ¸ÀjAiÀÄ®è. CfðzÁgÀ¼ÀÄ ¸Àzj À «µÀAiÀÄzÀ ¸ÀA§AzsÀªÁV £À£Àß PÀÄlÄA§zÀªg À £ À ÀÄß PÀg¬ É Ä¹PÉÆAqÀÄ £À£ÀߣÀÄß ¨ÉAUÀ¼ÀÆjUÉ PÀgz É ÀÄPÉÆAqÀÄ ºÉÆÃV C°è ªÉÊzÀågÀ PÀq¬ É ÄAzÀ £À£U À É ªÉÊzÀåQÃAiÀÄ

G¥ÀZÁgÀª£ À ÀÄß PÉÆqÀ¯ÁVzÉ JAzÀÄ ºÉüÀĪÀÅzÀÄ ¸ÀjAiÀÄ®è ªÀÄvÀÄÛ C°èAiÀÄ ªÉÊzÀågÀÄ UÀAqÀÄ ªÀÄPÀ̼ÉÆA¢UÉ ¯ÉÊAVPÀ QæAiÉÄAiÀÄ£ÀÄß ªÀiÁqÀzÉ EgÀĪÀAvÉ £À£U À É G¥ÀzÃÉ ²¹gÀĪÀgÀÄ JAzÀÄ ºÉüÀĪÀÅzÀÄ ¸ÀjAiÀÄ®è.

CfðzÁgÀ¼ÀÄ £À£Àß eÉÆvÉUÉ C¸Àºd À ªÁzÀ ¯ÉÊAVPÀ QæAiÉÄAiÀÄ£ÀÄß ªÀiÁqÀĪÀAvÉ £À£U À É MvÁ۬ĸÀÄwÛzÀݼÀÄ JAzÀÄ ¸ÀļÀÄî ºÉüÀÄwÛgÀÄªÉ JAzÀÄ ºÉüÀĪÀÅzÀÄ ¸ÀjAiÀÄ®è. CfðzÁgÀ¼ÀÄ PÁªÀĦ±ÁaAiÀiÁVgÀĪÀ¼ÀÄ JAzÀÄ ªÀÄvÀÄÛ vÀ£ÉÆßA¢UÉ AiÀiÁªÀvÀÄÛ ¯ÉÊAVPÀ QæAiÉÄ ªÀiÁqÀĪÀAvÉ MvÁ۬ĸÀÄwÛzÀݼÀÄ JAzÀÄ ¸ÀļÀÄî ºÉüÀÄwÛgÀÄªÉ JAzÀÄ ºÉüÀĪÀÅzÀÄ ¸ÀjAiÀÄ®è."

17. In the petition filed by the husband under Section

13(1)(i-a) of the Act, he has again repeated the

allegations of unnatural sex by the wife and that the

wife calls him as impotent. Relevant portion of the

pleadings paragraphs 5 and 7 reads as follows:

"5. JzÀÄgÀÄzÁgÀ¼ÀÄ J®è ªÀÄ»¼ÉAiÀÄgÀAvÉ ¸ÁªÀiÁ£ÀåªÁV®è. MAzÀÄ jÃwAiÀÄ°è ¯ÉÊAVPÀvA É iÀÄ gÁPÀ¹ ë AiÀÄAvÉ ªÀwð¸ÀÄvÁÛ¼.É CfðzÁgÀ¤UÉ ¸ÀÄvÁgÁA

EµÀ« Ö ®èªA É zÀÄ w½¢zÀÝgÀÆ, CfðzÁgÀ££ À ÀÄß §®ªÀAvÀªÁV C£ÉʸÀVðPÀ (Unnatural Sex) ¯ÉÊAVPÀvU É É MvÁÛAiÀÄ¥Àr¸ÀÄvÁÛ¼.É CfðzÁgÀ¤UÉ »A¸É ¤ÃqÀĪÀÅzÀPÉÌ F jÃw ªÀwð¹ CwAiÀiÁzÀ ¯ÉÊAVPÀ ªÁAbɬÄAzÀ CfðzÁgÀ£À ªÉʪÁ»PÀ fêÀ£ª À £ À ÀÄß vÀÄA¨Á£É PÀµPÀÖ g À ª À ÁV¹zÁݼ.É

7. JzÀÄgÀÄzÁgÀ¼ÀÄ AiÀiÁªÀÅzÉà jÃwAiÀÄ ªÀÄ£ÉAiÀÄ PÉ®¸ÀU¼ À £ À ÀÄß ªÀiÁqÀĪÀÅ¢®è. §jà ¸ÀtÚ ¥ÀÄlÖ «µÀAiÀĪÀ£ÀÄß zÉÆqÀz Ø ÁV ªÀiÁr ¨ÉÊAiÀÄÄvÁÛ¼.É dUÀ¼À UÀAnAiÀiÁVgÀÄvÁÛ¼.É PÉ®ªÉǪÉÄä gÀ¸ÉÛ ªÉÄÃ¯É ¤AvÀÄ PÉlÖ zsÀé¤AiÀÄ°è ¨Á¬ÄUÉ §AzÀAvÉ CfðzÁgÀ££ À ÀÄß ¨ÉÊAiÀÄÄvÁÛ¼.É MªÉÆäªÉÄä d£ÀgÀ ªÀÄÄAzÉ CfðzÁgÀ££ À ÀÄß "£À¥ÀÄA¸ÀP"À JAzÀÄ »ÃAiÀiÁ½¸ÀÄvÁÛ¼.É JzÀÄgÀÄzÁgÀ½UÉ vÀȦÛAiÉÄA§ÄzÉà E®è. AiÀiÁªÁUÀ®Æ CvÀȦ۬ÄAzÀ PÀÄ¢AiÀÄÄwÛgÀÄvÁÛ¼.É "

18. The wife in her statement of objections while

denying the allegations made by the husband has

repeated the allegations made by her in the petition filed

for restitution of conjugal rights. In their evidence, both

the husband and wife repeated their allegations against

each other.

19. The allegations and counter allegations of

husband and wife disclose the intense hatred between

the parties. Once such allegations of unnatural sex and

homosexuality are made against each other, one cannot

expect both of them to live together and in any

circumstances, the marriage cannot continue any

further. It is pertinent to note here that this is a case

where allegations are made not only by wife but also by

husband which are very serious in nature. The

husband has alleged that wife calls for unnatural sex

and the wife has alleged that the husband has

developed homosexuality. The allegations of both the

husband and wife against each other would undermine

the dignity and reputation of both the parties. The

allegations and counter allegations in the instant case

would be sufficient and justifies dissolution of marriage.

The allegations made by both husband and wife would

lead us to arrive at a conclusion that both of them

cannot live together.

20. The contention of the wife that she is even now

ready to live with the husband, if examined in the light

of allegations of both husband and wife, appears to be

mere statement without there being any substance.

When the allegations are taken note of, living together

by the husband and wife is out of question and we are

of the opinion that the Family Court has rightly held

that such reckless allegations which are not proved

would amount to mental cruelty and would be a valid

ground to grant decree of divorce. The wife had alleged

that husband had developed homosexuality and he was

taken to a psychiatrist at Bangalore. The wife has failed

to substantiate the said allegation. The wife has not

disclosed as to when the husband was taken to

psychiatrist at Bangalore and also the name of

psychiatrist who treated the husband. Similarly, the

husband had also failed to prove his allegations that the

wife forced him for unnatural sex. Therefore, in the

peculiar facts and circumstances of the present case,

the Family Court is justified in allowing the petition filed

by the husband under Section 13(1)(i-a) on the ground

of cruelty and in rejecting the petition filed by the wife

under Section 9 of the Act for restitution of conjugal

rights.

21. No ground is made out to interfere with the

impugned judgments and accordingly, both the appeals

are dismissed.

Before parting with the case, it is very pertinent to

note that the appellant and respondent have a girl child

from their wedlock and it is necessary to protect the

interest of the child. The husband Sri.Rajeev, who is a

Government servant working in Education department

was present before this Court during the course of

hearing on 13.07.2021. On instructions, learned

counsel for the appellant Sri.Ameet Kumar Deshpande

submitted that the respondent-husband is ready and

willing to keep a sum of Rs.5,00,000/- in Fixed deposit

in any Nationalized Bank in the name of child

Kum.Pavani till she attains the age of 18 years and

thereafter to utilize the same for her necessities.

Learned counsel further submitted that the respondent-

husband would pay a sum of Rs.11,000/- p.m., as

maintenance to the child Kum.Pavani for her

educational and other necessities.

The respondent-husband is directed to keep in

Fixed Deposit, a sum of Rs.5,00,000/- in the name of

the daughter Kum.Pavani with any nationalized bank,

till she attains the age of majority and thereafter to

utilize the same for her further necessities. The deposit

as directed above shall be made within a period of two

months from the date of receipt of a copy of this order

and hand over the original F.D. receipt to the daughter

Kum.Pavani. Xerox copy of the F.D. Receipt shall be

filed before this Court within the period stated above.

Further, the respondent-husband is directed to pay a

sum of Rs.11,000/- p.m., as maintenance to daughter

Kum.Pavani on or before 10th of every month.

Sd/-

JUDGE

Sd/-

JUDGE

mpk/-*